mation protected by fundamental rights with a view to retaining such data for unspecified or undeterminable purposes is incompatible with the Basic Law (cf. BVerfGE 65,
1 <46>; 100, 313 <360>; 115, 320 <350>; 118, 168 <187>). It is an integral part of
the constitutional identity of the Federal Republic of Germany that the exercise of
freedoms by individual persons may not be recorded and registered in its entirety [by
the state]; it is incumbent upon the Federal Republic of Germany to promote adherence to this identity within the European and within international contexts (cf. BVerfGE 125, 260 <323 and 324> with reference to BVerfGE 123, 267 <353 and 354> on
the guarantee of constitutional identity under the Basic Law).
c) The Committee of Inquiry’s right to receive the NSA Selector Lists, which derives,
in principle, from its right to take evidence, has neither been satisfied by the appointment of an expert in a position of trust (sachverständige Vertrauensperson), nor by
the expert opinion submitted by that person. The person of trust appointed as expert
does not act as an auxiliary organ for the Committee of Inquiry.
[…]
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155-157
2. The Committee of Inquiry’s right to take evidence conflicts with respondent no. 1’s
interest that state functions be exercised in a duty-oriented manner and by the appropriate organ.
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Based on the assessment of respondent no. 1, handing over the NSA Selector Lists
in violation of a confidentiality assurance under international law, and without the consent of the United States of America, would significantly undermine the intelligence
services’ functioning as well as their ability to cooperate and thus also impair the Federal Government’s capacity to act in matters of a foreign or security policy nature.
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a) According to both the shared understanding of the cooperating parties regarding
the Confidentiality Agreement as well the Memorandum of Agreement (MoA) (aa) and
the “Third Party Rule” (bb), the state sharing its intelligence is the “master of such information” and thus retains the power of disposal even after transferring the relevant
intelligence. The lack of consent by the United States of America bars handing over
the NSA Selector Lists to the Committee of Inquiry (cc).
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aa) Cooperation between the BND and the NSA is based on the Confidentiality
Agreement and the MoA. The Confidentiality Agreement sets out the general principles governing the exchange of classified information, i.e. the applicable technicaladministrative provisions. The MoA specifies the organisational and technical conditions, personnel resources and cost liability, as well as the applicable legal framework
for the relevant Joint SIGINT Activity project. As is the case in the interpretation of international treaties, any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions must be taken into account, in addition to its text, when interpreting the Confidentiality Agreement and the
MoA (BVerfGE 90, 286 <362 et seq.>). In accordance with what was agreed and
commonly understood during the consultation procedure, the decision on the re-
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